On Wednesday, President Dr Arif Alvi requested the Supreme Court’s opinion on holding the Senate elections by means of an open ballot and a show of hands.
The Press Information Department’s statement stated that the president had authorised the request by Prime Minister Imran Khan to submit a reference to the supreme court pursuant to Article 186 of the Constitution.
“The president has sought the opinion of the apex court on the premier’s proposal to hold the elections using open ballot/show of hands,” the declaration said. In the reference, the President sought the opinion of the Supreme Court on amending, without amending the Constitution, Section 122(6) of the Election Act, 2017, it said.
On December 15, the federal government agreed to hold the February Senate elections and to claim the SC’s advisory authority over the free voting process.
52 vacancies in the upper house are to be elected when as many members of the 104-member Senate will resign on 11 March.
The request was made by Attorney General Khalid Jawed Khan to obtain the advice of the supreme court under Article 186 of the Constitution.
Briefing the cabinet, he said that if Section 122(6) of the Elections Act, 2017 was amended by an order of the Election Commission of Pakistan (ECP) before the start of the election schedule, the elections to the Senate could be conducted by open vote rather than by secret ballot.
However, taking into account the seriousness of the matter and provided that there is ample time before the next election to the Senate, the government may seek clarification on the matter by sending a referral to the SC pursuant to Article 186 of the Constitution,” he said.”
As alluded to in Article 59 of the Constitution, AG Khan said the Senate election was expected to take place in or around March 2021 to fill the seats. A public announcement was made by the prime minister conveying his government’s intention to conduct the elections by open ballot/show of hands as against secret balloting.
He said that Section 122(6) of the Elections Act 2017 currently allows for secret ballots for Senate elections. Article 226 of the Constitution states that a secret ballot shall be held for all votes under the Constitution, other than those of prime ministers and chief ministers. The AG then declared that, unless the Constitution was changed, the election to the Senate could not be held by means of an open vote/show of hands.
In comparison to this convocational interpretation, however, Khan had said that there was another opinion that the election to the Senate was not an election under the Constitution.
It shall be held in compliance with the rules of the 2017 Elections Act. The polls referred to in Article 226 of the Constitution require the election of the President of Pakistan in accordance with Article 41(3) read in the Second Schedule of the Constitution. Likewise, the elections of speaker and deputy speaker of the National Assembly and chairman and deputy chairman of the Senate are elections held under the Constitution,” he had said.
According to him, Article 226 of the Constitution was read by numerous courts. In the case of the MQM vs Province of Sindh (PLD 2017 Sindh 169), the Sindh High Court (SHC) in the case of Attaullah vs Government of Pakistan (PLD 2014 Balochistan 206) held, following the previous judgement of Balochistan High Court in the case of Attaullah vs Government of Pakistan (PLD 2014 Balochistan 206), that the local government elections were the polls referred to in Article 226 of the Constitution and must be held by secret ballot.
However, a three-member SC bench later ruled, on an appeal against the SHC decision, that local government elections must be held by secret ballot or by showing hands, and the option was left to the legislature.
“The provisions in the applicable statute at the time of the start of the election schedule would, however, be the determining factor,” the AG said.
Although the Supreme Court decision was a short order of four pages, no detailed explanations were reported in that case and the three judges who gave the short order resigned.
In the meantime, informed sources told Dawn that Minister of Science and Technology Fawad Chaudhry had given the proposal for early Senate elections. When a meeting member was asked if it would require an amendment to the legislation, he responded in the negative and said there was space for it in the law.
It referred to Article 224(3) of the Constitution, which reads: ‘An election to fill the seats in the Senate to be vacant until the expiry of the term of office of the members of the Senate shall take place no sooner than thirty days immediately prior to the date on which the vacancies are due.’
He had, however, claimed that the members elected before the expiry of their predecessors’ terms would assume responsibility after March 3.